Monday, March 26, 2007

The Ideal Argument (Part 1)

In my opinion, the argument against legal marriage for gay couples to be discussed in this series of posts is the best argument I’ve come across (though, of course :-), in the end, I don’t think it holds up). It can have a 100% secular basis, thus leaving clashing faiths out of it, and, given the premises (I’ll get to that), one can get a good long ways with it in debate and, as the record shows, in a court of law. It goes a little like this (quoting an old opponent):

In the ideal family situation, children are created and raised by their biological parents. The state’s interest in marriages is in promoting the creation of children in that ideal.

It should be noted, while often it isn’t specifically stated, it’s insinuated that this interest is the only interest the state has in marriage; it’s the interest.

From here I’ve got the dance down by heart. This is the place where the proponent says, “Hey, what about all those other infertile couples? Why don’t you restrict them? If this is honestly the state interest, why is it expressed nowhere in marriage law?”

The opponent’s response, in my experience, can come in a couple variations:

1. Necessary Error: The law can’t weed these people out, for any number of reasons (I’ll get to them). These infertile heterosexual couples are taking this legal designation but it’s not meant for them. Some may even think the knowingly infertile couple should be socially shunned and marriages unattended for their theft of the legal classification. Nevertheless, the law can’t weed them out. Why?

a) Privacy. They argue there is a right to privacy that can’t be breached here. You can’t ask about a person’s fertility; it’s too personal. This excuse has a number of failings, and much evidence to show this is not why the state does what it does (and the "ideal" is seemingly not, by their lack of concern for change, what the opponent is honestly after).

i) Data that can rule infertile people out is already taken as part of the marriage licensing process; it’s not private. You give your date of birth and, by that, a woman’s fertility may be absolutely known (a 90 year old isn’t going to be having babies, and the state most often would be burdened if she did).ii) Medical tests are already a requirement for marriage in some jurisdictions; some have to get blood tests, which may reveal STDs. Talk about privacy issues. And if the opponent then goes to arguing that the to be spouse has a right to know, the same can be reasonably said for fertility.iii) There’s a very easy work around; the existence of children is a public fact. If these rights are only made for those with children and the reason there’s testing is concern for privacy, marriage could take place as usual to still encourage child production, but state involvement only activates when children come into the family.iv) If you know many trans folks you'd find a person’s biological sex can be a very private matter as well, and yet that info is the info you’ll be asked to give, and it will be used to discriminate between couples. I know a couple people who’s sex remains a mystery and that’s psychologically quite important to them. Hermaphrodites must be mentioned here as well. Supernatural theories about sex aside, some people are genetically and anatomically between male and female (or neither). Yet their sex is given privacy, forced into an artificial classification, or allowed to be fluid M or F in marriage law, depending upon their sexual orientation.v) Lastly, tests for fertility are already in place, and required for marriage in some cases; privacy is no barrier to such requirements. As outlined in this post, some couples must prove they are infertile, not fertile, before they can be married. This should be counted as evidence as to what the state’s motivation actually is in marriage.

b) Simplicity: They argue it’s too complicated to write laws that addresses all the variations of infertility. Best to just leave it at a man and a woman and hope most of them caught in the imperfect net are going to have biological children. This has failings similar to the privacy argument:

i) First off, no one is asking for all infertile couples to be caught. The opponent has already settled for imperfection with their sex requirement, and all can agree, if that is the state’s true goal, perfection isn’t possible, but it may easily be better approached, if they honestly want it.ii) Next, why is this bit of complexity a concern? Have you ever read legal code? It’s complex stuff, even around marriage. A line about the age of a woman is no noticeable difference in complexity, a drop in an ocean, and such a “complex” requirement for age is already in place. Such wouldn’t even require any new forms. Even still, a one line question in the forms asking if the couple knows, under penalty of perjury, if they are biologically infertile is a simple addition to the other questions; no more complicated than monitoring, as most now do, the couple’s biological sex. You can, with simplicity, make the selection more “perfect”. But watch the world quickly remember the benefits of recognizing marriages that don’t promote this “ideal” if a legislator ever promoted that :-).iii) For truly complicated measures, the law here is already complicated far beyond the point of what would be needed. Much of what was written above regarding privacy applies. For example, we already make exceptions for certain couples and test to be sure they are infertile, or free of STDs before they can marry; there’s no significant added legal complexity to test for fertility. And if you don’t want to require extensive medical exams, you can weed out some couples with obvious reproductive inability, or, again, just ask (many people missing reproductive organs know it).iiv) If the concern was actually simplicity over achieving the stated goals in the primary argument, one could make the law simpler by ignoring gender too. If simplicity is so important they'll undermine their goal in one instance, it's fair to ask why it's no longer important in this instance. They may have an explanation, but one should be given for the way they are balancing the two.

In all, I think these “oops” or “it’s too complicated” excuses are amongst the weakest in this ideal family argument. It’s difficult, when they are used, to not think they are use to only conceal and distract from the actual intention. By the last post I'll address the assumptions of the ideal family argument directly, but, still, I do think these claims are in need of address as they are prevalent.

Anyway, once those two angles are debated into the ground… and then covered with piles of thoroughly beaten dead horses, who are all beaten one more time, for good measure, with the titanium sheathed depleted-uranium hammer of a Pneumatic Dead Horse BeaterTM, it typically goes on to the argument that infertile heterosexual couples are actually included, not for a mistake or unwillingness to do "complicated" work for the ideal, but purposefully (adoption related arguments, fear of too much government intervention...).

Next post, though; this is getting too long (To avoid a tangent, I do suspect, the next post, Silus, is where you’re argument sits).

6 comments:

I don't think marriage as a form of public health policy (roughly speaking) is particularly complicated. Early societies noticed that folks who stick together and raise kids produce citizens that are healthier and more capable of contributing back to society. That sort of investing deserves an incentive, so you have marriage--a ritual to impress on the minds of all parties involved the permanence of the sexual and domestic partnership. And, throw in a package of other benefits over time.

As people get older and have spent their youth raising their kids, they can enjoy the gratitude of others for their conscientious procreation and parenting (in the form of continued marriage benefits and other intangibles). If one's children die or never manage to be conceived... it doesn't hurt the benefits from the overall system, so there's no incentive to punish or exclude them in some way. What would this accomplish? But the incentive is not designed for them, they are the exceptions.

Those who are not ideal are not un-ideal either. The lack of harm leaves a conspicuous lack of need for regulation.

"Early societies noticed that folks who stick together and raise kids produce citizens that are healthier and more capable of contributing back to society."

How early are you talking here, L? The earliest societies used marriage primarily as a way to acquire and contain wealth and status. If you look at the royal families, for example, it is quite apparent. This also continued in early America.

The idea of marriage being a boon to society is relatively new.

There's this book called Marriage, A History, that I have started reading. It is really interesting to see how marriage has changed dramatically over the centuries, and how what is now called "traditional" marriage actually refers to something closer to the golden age of the 1950s.

This is rather tangential, I know, because I haven't finished that book, but it's been highly recommended to me. From what I've read thus far, though, I think it would make for interesting play on this topic.

Once again, I am at a disadvantage in addressing your comments: this post is about the "ideal argument" which vaguely resembles the one I've put forward in a number of places (for example my Nine-moons series: Intro, I, II, III, IV, V) — including in the comments of your Kissing Cousins post. But it's not a direct rebuttal of my position, in as much as it attempts to address a more general argument than mine... which makes it difficult for me to respond directly, but I'll do my best.

So, let's take it a little bit at a time:

In my opinion, the argument against legal marriage for gay couples to be discussed in this series of posts is the best argument I’ve come across (though, of course :-), in the end, I don’t think it holds up).

Inasmuch as it bears a striking resemblance to my argument, I should probably thank you.

: )

In the ideal family situation, children are created and raised by their biological parents. The state’s interest in marriages is in promoting the creation of children in that ideal.

For sake of brevity, I'd put it this way: of the handful of compelling state interests in marriage, the salient one to the issue of gay marriage is that of child rearing... The ideal family, in my humble estimation, is a child being raised by their biological mother and father in a loving and materially sufficient home. I further submit that the state should favor the ideal when weighing competing interests — and should vigorously protect its ability to so do.

...From here I’ve got the dance down by heart. This is the place where the proponent says, “Hey, what about all those other infertile couples? Why don’t you restrict them? If this is honestly the state interest, why is it expressed nowhere in marriage law?”

My response would be simply that it's not the only state interest... moreover, infertile couples can still raise children, and when dealing with an imperfect world, you should strive for the best of second choices. That being said, the issues you raise regarding the fictional argument seem a little off.

"...This should be counted as evidence as to what the state’s motivation actually is in marriage..."

This statement, among others, seems to imply that I and others making the argument outlined above have an altior motive... is this what you intend to imply? Or are you saying, simply, that there are other compelling state interests at play, and that these other state interests trump the one that is directly at-odds with the legal recognition of gay marriage? If that's the case, I'd like to know what interests these are...

I tried to be clear with “To avoid a tangent, I do suspect, the next post, Silus, is where you’re argument sits,” and I think I was right, in part, but maybe the last post in this series is most relevant?

In this post, I’ve gone over aspects of this debate I’ve encountered, trying to be thorough. I see why this is confusing. Again, I’m piecing together posts from old writing and writing the whole thing with a mind set on the knowledge that I’ll use this again, all with people who are not you :-). The place in this series I was thinking of your argument most directly was in part 2b. Though I did have your writings in mind, on the rest, I was hoping to be more broad, and think now the last post may be more appropriate.

“My response would be simply that it's not the only state interest...”

We agree :-).

“moreover, infertile couples can still raise children, and when dealing with an imperfect world, you should strive for the best of second choices.”

“That being said, the issues you raise regarding the fictional argument seem a little off.”

I’m not sure exactly how to respond to that but I can guarantee that this debate presented in this post regarding accidental inclusion of infertile couples, couples the opponent would prefer not have marriage rights, is not fictional, if that’s what you meant. I get that one all the time.

is this what you intend to imply?

We are getting suspicious of one another too soon :-).

With this statement “This should be counted as evidence as to what the state’s motivation actually is in marriage” I mean to say what the other side is claiming is the state’s compelling interest here is actually shown, from the state’s perspective, to be different (or more inclusive) than their claim. This doesn’t indicate ulterior motives anymore than competing theories on quantum mechanics indicates one physicist must be hiding his true motivation.

I do though think people who resist reaching their ideal by claiming the two arguments here (which are not you’re positions, right?), have either never thought too hard on how they can reach their ideal or are being disingenuous. And certainly, there are disingenuous people on both sides. I’ve even had people outright tell me they don’t want gay marriage for supernatural reasons, but that they work on these secular arguments because those are the arguments that get them there. If I come across as combative or accusatory, that’s why.

“Or are you saying, simply, that there are other compelling state interests at play, and that these other state interests trump the one that is directly at-odds with the legal recognition of gay marriage? ”

Yes there are many other interests (described in the next couple posts and in posts linked to a couple times in the last post, under "evidence" I think). But this is not a zero-sum game for the participants. The other interests don’t trump as much as go side by side, just as the fact that using the tweezers in my Swiss army knife doesn’t make the blade inoperable in another instance; heck, I use the screw driver more than anything and never the blade :-). If you integrate the benefits up of all these different parts, some of the lesser interests do far exceed the larger interests for many couples and children. Furthermore, I think this arguably largest interest of the state, in securing a child's family, is applicable to many gay couples, as much and often more so than to the average infertile couple. The state often even has an interest in splitting children's homes up, even with biological parents. But I think I’ve gone into that in future posts, and should probably just wait and see.